Capital Punishment

Source: The Journal of Criminal Law and Criminology (1973-) , Dec., 1976, Vol. 67, No. 4
(Dec., 1976), pp. 437-449
Published by: Northwestern University Pritzker School of Law

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THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 67, No. 4
Copyright @ 1977 by Northwestern University School of Law Printed in U.S.A.

CAPITAL PUNISHMENT

Gregg v. Georgia, 96 S.Ct. 2909 (1976).

Proffitt v. Florida, 96 S.Ct. 2960 (1976).
Jurek v. Texas, 96 S.Ct. 2950 (1976).
Woodson v. North Carolina, 96 S.Ct. 2978 (1976).
Roberts v. Louisiana, 96 S.Ct. 3001 (1976).

The Supreme Court this past term discretion

decidedtofive
the jury in deciding whether the death
cases involving various attempts by statespenalty would bea imposed. Although there was no
to devise
constitutional form of capital punishment. In Gregg
one opinion of the Court, the Justices of the majority
v. Georgia, 'Proffitt v. Florida, 2 and Jurek v. Texas,
did focus somewhat ' on this uncontrolled jury discre-
tion
the Court held that the respective states anddevised
had the possibility of arbitrary and capricious
statutes permitting capital punishment which of
imposition could
the death penalty as one basis for their
pass constitutional muster. Yet state opinions.
plans in two
Since all state statutes then in effect
other cases, Woodson v. North Carolina,' and contained similar allowances for jury discretion
Roberts v. Louisiana, failed to meet the Court's along the lines of the Georgia plan, the practical
constitutional standards. effect of Furman was to foreclose executions under all
The Court heard all five cases in order to consider state statutes. In addition the language of the decision
issues left unresolved by its 1972 decision on capitalcreated some apprehension that the Court might, in
punishment, Furman v. Georgia. 6 In Furman thethe next case before it, totally ban capital punish-
Court held that the Georgia death penalty statutesment.
constituted cruel and unusual punishment in viola- In the face of this uncertainty several states passed
tion of the eight and fourteenth amendments. How- new capital punishment laws and, as would be
ever, because each Justice filed a separate opinion in expected, defendants sentenced under these new laws
Furman, and because no one opinion was concurredimmediately challenged their constitutionality. Each
in by a majority, the exact requirements for a of the five cases which the Court agreed to hear
constitutional death penalty remained unarticu- raised two major issues: 1) Does the penalty of death
lated. 7The statutes in question in Furman gave total for the crime of murder constitute a per se violation
of the eighth and fourteenth amendments and, 2) if
196 S.Ct. 2909 (1976).
296 S.Ct. 2960 (1976). not, does the particular death penalty statute in
396 S.Ct. 2950 (1976). question create a substantial risk that the death
496 S.Ct. 2978 (1976). penalty might be inflicted in an arbitrary and
596 S.Ct. 3001 (1976).
capricious manner, thus violating the eighth and
6408 U.S. 238 (1972).
fourteenth amendments?
7Justice Douglas found that the Georgia plan was
"pregnant with discrimination" and thereby incompatible
THE DEATH PENALTY AS A PER SE VIOLATION
with the concept of equal protection implicit in the ban on
cruel and unusual punishment. 408 U.S. at 257 (Douglas,
Seven of the Justices reached the conclusion that
J., concurring). Justice Stewart concluded that the death
capital
penalty has been too "wantonly and... freakishly" ap- punishment does not constitute a per se
violation of the Constitution. 'The Court considered
plied to be permitted under the eighth and fourteenth
each case separately, but the issue of the per se
amendments. Id. at 310 (Stewart, J., concurring). Justice
White held that because of the infrequency with which the
constitutionality of the death penalty was treated
penalty was imposed, the Georgia penalty failed to further
largely in Gregg v. Georgia 9and Roberts v. Louisi-
the social ends which capital punishment was meant to
serve. Therefore, when it was imposed it constituted the
pointless extinction of life resulting in the violation of 8Gregg
the v. Georgia, 96 S.Ct. at 2932 (Stewart, Powell,
eighth and fourteenth amendments. Id. at 312 (White,
Stevens,
J., JJ., plurality opinion); Roberts v. Louisiana 96 S.
Ct. at 3014 (White, Blackmun, Rehnquist, JJ., Burger,
concurring). Justices Brennan and Marshall in separate
C.J., dissenting).
opinions held that the death penalty was per se unconstitu-
9Gregg v. Georgia, 96 S.Ct. at 2922 (Stewart, J.,
tional. Id. at 305 (Brennan, J., concurring), 359 (Marshall,
J., concurring). plurality).
437

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 438 CAPITAL PUNISHMENT [Vol.67

ana. 1o There werePrior

twocases hadseparate
rejected the argument that death
plurality
on this issue. itself was cruel and unusual punishment. In an early
In Gregg v. Georgia, Justice Stewart, joined by case dealing with death inflicted by electrocution the
Justices Powell and Stevens [hereinafter the Stewart Court said:
plurality] noted that the Court had never before
[T]he punishment of death is not cruel, within the
squarely faced the claim that the penalty of death
meaning of that word as used in the Constitution. It
itself is a cruel and unusual punishment in violationimplies there something inhuman and barbarous,
of the Constitution, regardless of the crime commit- something more than the .. extinguishment of life. "
ted or the sentencing procedure used. On a number of
occasions " the Court simply assumed the constitu- The same sentiment was expressed much more
tionality of capital punishment, that assumption pro-recently by Chief Justice Warren:
viding a necessary foundation for its decisions. 1" [T]he death penalty has been employed throughout
An examination of prior cases revealed that the our history, and in a day when it is still widely
Court has never viewed the eighth amendment as a accepted, it cannot be said to violate the constitutional
static concept: "The Amendment must draw its concept of cruelty. 18
meaning from the evolving standards of decency that
The Stewart plurality also noted that the standard
mark the progress of a maturing society." 18Thus in
must be applied with an awareness of the judiciary's
order to determine the constitutionality of the death
limited role in assessing the constitutionality of a
penalty, the Stewart plurality felt the Court must
punishment selected by a democratically elected
assess contemporary values regarding capital punish-
legislature. 19Caution was urged by the plurality lest:
ment, looking to objective rather than subjective
indicia that would reflect public attitudes. Yet the Under the aegis of the Cruel and Unusual Punishment
Stewart plurality recognized that public perceptions Clause, [the Court becomes] the ultimate arbiter of the
of decency would not be conclusive since prior standards of criminal responsibility . . .throughout
decisions have also emphasized that the basic tenet the country. o
underlying the eighth amendment is that any penalty The fact that since Furman thirty-five states "2and
must accord with the "dignity of man." 1" Such a the federal government 22 have enacted new statutes
standard prescribes that the penalty should notincorporating capital punishment convinced the
involve "the unnecessary and wanton infliction ofStewart plurality that contemporary values had not
pain" and that the "punishment not be grossly out ofrejected the penalty. The plurality also relied upon
proportion to the severity of the crime." 1" the facts that juries have convicted and sentenced 460
The Stewart plurality concluded that capital pun-persons to death under these new statutes and that
ishment for murder did not violate that standard. 16 state referenda both before and after Furman have

"oRoberts v. Louisiana, 96 S.Ct. at 3014 (White, J., evidenced continued acceptance of the death penal-
dissenting). ty. 23
"Louisiana ex rel. Francis v. Resweber, 329 U.S. The Stewart plurality found the penological jus-
459, 464 (1947); In re Kemmler, 136 U.S. 436, 447
tifications of retribution and deterrence were compat-
(1890); Wilkerson v. Utah, 99 U.S. 130, 134-35 (1879).
1296 S.Ct. at 2923. While Furman did raise the issue of ible with the basic dignity of man concept said to be
the per.se unconstitutionality of the death penalty, it did the core of the eighth amendment. While retribution
not decide the issue. Four Justices in Furman would have was not viewed as a dominant objective of the
held that capital punishment is not unconstitutional per se.
criminal law, the plurality found that neither was it a
408 U.S. at 375 (Burger, C. J., dissenting), 405 (Black-
mun, J., dissenting), 414 (Powell, J., dissenting), 465 murder and that it reserved judgement on the per se uncon-
(Rehnquist, J., dissenting). Two Justices would have held stitutionality of the death penalty for crimes that did not
the death penalty unconstitutional. Id. at 257 (Brennan, encompass the taking of human life.
J., concurring), 314 (Marshall, J., concurring). The re- "71n re Kemmler, 136 U.S. 436, 447 (1890).
maining three Justices left the question open. Id. at 240 1"Trop v. Dulles, 356 U.S. 86, 99 (1958) (Warren,
(Douglas, J., concurring), 306 (Stewart, J., concurring), C. J., plurality opinion).
310 (White, J., concurring). 19Gregg v.'Georgia, 96 S.Ct. at 2928 n.23 (Stewart, J.,
"3Trop v. Dulles, 356 U.S. 86, 101 (1958) (Warren, plurality opinion).
C. J., plurality opinion). 20Id. at 2927, quoting Powell v. Texas, 392 U.S. 514,
"Id. at 100. 533 (1968).
"SGregg v. Georgia, 96 S.Ct. at 2925. 2196 S.Ct. at 2928 n.23.
16Id. at 2931-32. It is important to note that the Court 221d. at 2928 n.24.
was only considering capital punishment for the crime of 231d. at 2929.

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 1976] SUPREME COURT REVIEW 439

states ever since the Union

forbidden one."' Furthermore, was formed,
even but the
though
might find the idea plethora
of retribution unappealin
of post-Furman capital punishment statutes
Stewart plurality felt itthe
indicates that was a concept
death penalty is still acceptable to a of
importance to the general
majority of thepublic, and
people of the country. express
80 Its "wide-
view that anarchy would develop
spread re-enactment if the
. . . answers any claims public
that
that society was unwilling tois impose
life imprisonment adequate punishment the punis
to satisfy
criminals "deserve." 25 the need for reprobation or retribution." "
Concerning the deterrent effect of the death penal- Concerning the death penalty as a deterrent factor,
ty, the Stewart plurality noted that the debate has
the White plurality, like the Stewart plurality,
gone on long, but inconclusively. 26 This inconclu- acknowledges that no clear evidence of deterrence can
siveness did not invalidate deterrence as a justifica-
be shown. The White plurality refused to reject the
tion of the death penalty, rather it shifted the final
legislative judgment that the imposition of capital
punishment will save innocent lives:
determination of that complex issue back to the legis-
latures which, according to the Stewart plurality, are
This concern for life and human values and the sincere
better equipped to evaluate this question.
efforts of the States to pursue them are matters of the
The views of the other four Justices who cast their
greatest moment with which the judiciary should be
votes to deny the per se unconstitutionality of capitalmost reluctant to interfere. 82
punishment did not come in the principle case,
Gregg, but rather in Roberts v. Louisiana27 in theThe Justices are not free to treat the issue before
dissenting opinion of Justice White, joined by Jus-
them as if they were legislators voting for or against
tices Blackmun, Rehnquist, and the Chief Justice capital punishment. Rather they must confine their
[hereinafter the White plurality]. The White plural-
inquiry to the question of whether the eighth
ity closely parallels much of the reasoning of theamendment requires the Court to interfere with the
Stewart plurality. It focuses on the longstanding
enforcement of these statutes. 88
acceptance of capital punishment and the legitimateIn summary, the seven Justices who voted to
nature of that penalty as an instrument of retribution
deny the per se unconstitutionality of capital punish-
and deterrence. According to the White plurality, ment agreed that contemporary standards have not
acceptance of the concept of capital punishment by rejected the death penalty. The Stewart plurality
the Framers of the Constitution is clearly shown by further concluded that apart from the views
the wording of the fifth amendment: expressed by society, the death penalty was not out of
proportion to the severity of the crime nor did it
No person shall be held to answer for a capital, or
constitute the unnecessary infliction of pain.
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, . . . [and no person shall
The views of the two dissenters sharply conflicted
be] twice put in jeopardy of life or limb . . . nor be with the views of the two pluralities. Justices
Brennan and Marshall each wrote dissenting opin-
deprived of life . . . without due process of law. 28
ions in Gregg,"' in which both adhered to their
The fourteenth amendment enacted nearly a century positions expressed in Furman that capital punish-
ment is unconstitutional per se. Justice Brennan
later likewise prevents the states from depriving any
person of "life" without due process of law.29 agreed with the Stewart plurality analysis that the
Furthermore, not only has the death penalty been eighth amendment must draw its meaning "from the
part of the criminal justice system of a majority evolving
of standards of decency that mark the progress
of a maturing society," "but he disputed the conclu-
241d. at 2930.
sion that those standards permit the imposition of the
25Gregg v. Georgia, 96 S.Ct. at 2930 (Stewart, J.,
plurality). death penalty today. Justice Brennan was not con-
261d.
2796 S.Ct. at 3008 (White, J., dissenting). These Jus-
tices dissented because they felt that the death penalty 301d. at 3016.
statute was constitutional in Roberts even though it was 311d. at 3016 (White, J., dissenting).
mandatory. They took the occasion of a dissent to express 321d. at 3017.
their views on the per se constitutionality of capital punish- 33Id.
ment. 3"Id. at 2971 (Brennan, J., dissenting), 2973 (Marshall,
28U.S. CONST. amend. V. J., dissenting).
2996 S.Ct. at 3014-15 (White, J., dissenting). See 35Trop v. Dulles, 356 U.S. at 101 (Warren, C. J.,
U.S. CONST. amend. XIV. plurality opinion).

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 440 CAPITAL PUNISHMENT [Vol. 67

cerned penalty is per by

with the method se unconstitutional.
which He took
thenotice of
pena
be imposed. He focused entirely
the pluralities' attack on that
on his Furman conclusion the e
the death penaltycurrent
itself.moral valuesFor
find capitalhim
punishmentwheth
unac-
may impose capital ceptable:
punishment is essential
question:
I would be less than candid if I did not acknowledge
From the beginning of our Nation, the punishment of that these developments " have a significant bearing on
death has stirred acute public controversy .... At a realistic assessment of the moral acceptability of the
bottom, the battle has been waged on moral grounds. death penalty to the American people. 42
The country has debated whether a society for which
the dignity of the individual is the supreme value can, Yet Justice Marshall refused to accept the notion that
without a fundamental inconsistency, follow the prac- an "informed citizenry" would find the death penal-
tice of deliberately putting some of its members to ty acceptable. He cites a post-Furman study " pur-
death. In the United States, as in other nations of the porting to show that the American people know little
western world, "the struggle about this punishment about capital punishnent and that the opinion of an
has been one between ancient and deeply rooted beliefs
informed public would be significantly different from
in retribution, atonement, or vengence on the one
that of an unaware public. But even if the post-Fur-
hand, and on the other, beliefs in the personal value
man statutes did reflect the views of an "informed
and dignity of the common man that were born of the
democratic movement of the eighteenth century . . . It citizenry," Justice Marshall still contended that the
is this essentially moral conflict that forms the back- death penalty was excessive and for that reason alone
drop for the past changes in and the present operation unconstitutional. "
of our system of imposing death as a punishment for He took issue with the position of both pluralities
crime. 36
that retribution can serve as moral justification for
the death penalty. This idea was "the most disurbing
According to Justice Brennan the eighth amendment
aspect" of the pluralities' opinions as far as Justice
"embodies in unique degree moral principles Marshall was concerned. 4 He found it incredible to
restraining the punishments that our civilized soci-
suggest that the sanction of death is necessary to
ety may impose on those persons who transgress its
prevent Americans from taking the law into their
laws." " It forces the state, even as it punishes, to
own hands. 6 The fact that the community demands
treat its citizens in a manner "consistent with their
the life of the criminal because he "deserves it"
intrinsic worth as human beings-a punishment
cannot be tolerable, concludes Justice Marshall,
must not be so severe as to be degrading to human
because "such a penalty has as its very basis the total
dignity." 38Justice Brennan argued that if the rack,
denial of the wrong-doer's dignity and worth.""4
the screw, and the wheel are degrading to human
On the deterrent effect of capital punishment as a
dignity as punishments and therefore cruel and un-
justification for that penalty, Justice Marshall noted
usual punishments, then the extinguishment of a hu-
that after a thorough review of the available data, he
man life on the authority of the State surely can be no
had concluded in Furman that no positive correlation
longer morally tolerable in our civilized society.39
between the two existed. Since that decision a study
The fatal constitutional flaw of the death penalty, in
by Isaac Ehrlich 4:supported the contention that the
Justice Brennan's opinion, is that:
death penalty does deter murder. However, Justice
[I]t treats members of the human race as nonhumans,Marshall was convinced that the study was of little
as objects to be toyed with and discarded. [It is] thus
inconsistent with the fundamental premise of the "1The developments Justice Marshall was referring to
Clause that even the vilest criminal remains a human
are the re-enactment of capital punishment statutes by
being possessed of common human dignity. 4o thirty-five states and Congress.

Similarly, Justice Marshall's dissent in Gregg 4296 S.Ct. at 2973 (Marshall,J., dissenting).
43Sarat & Vidmar, The Death Penalty and the Eighth
reaffirmed his previous conviction that the death
Amendment: Testing the Marshall Hypothesis, 1976 Wis.
L. Rev. 171.
36Gregg v. Georgia, 96 S.Ct. at 2971, quoting Furman
4496 S.Ct. at 2974-75 (Marshall,'J., dissenting).
v. Georgia, 408 U.S. at 296. "I1d. at 2976.
371d. at 2972.
46Id.
38Id.
471d. at 2977.
39Id.
48Ehrlich, The Deterrent Effect of Capital Punish-
4old., quoting Furman v. Georgia, 408 U.S. at 273 ment: A Question of Life and Death, 65 AM. EcoN.
(Brennan, J., concurring). REV. 397 (1975).

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 1976] SUPREME COURT REVIEW 441

assistance in assessing finds

the at deterrent
least one of the statutory
impactaggravating
becau
circumstances "" and then
of the questionable methodology used electsin
to impose
the that sen-
study
Justice Marshall remained
tence. Evenconvinced that
if one of the aggravating the de
circumstances
penalty does not deter crime. 50 circumstances are set out in GA.
"5The aggravating
INFLICTION IN AN ARBITRARY OR CAPRICIOUS CODE ANN. ? 27-2534.1 (1975):
MANNER (a) The death penalty may be imposed for the of-
fenses of aircraft hijacking or treason, in any case.
Since a majority of the Justices felt that the
(b) In all other offenses for which the death penalty
imposition of the death penalty was not per se may be authorized, the judge shall consider, or he
shall include in his instructions to the jury for it to
unconstitutional it was necessary to examine each
consider, any mitigating circumstances or aggravating
state's statutory scheme for sentencing. In Furman,circumstances otherwise authorized by law and any of
as noted earlier, the Court had placed some emphasis
the following statutory aggravating circumstances
on the requirement that the penalty may not be
which may be supported by the evidence:
imposed arbitrarily or capriciously. Each statute in (1) The offense of murder, rape, armed robbery, or
kidnapping was committed by a person with a
the five cases before the Court represented an attempt
prior record of conviction for a capital felony, or the
by the states to comply with this loosely definedoffense of murder was committed by a person who
directive of Furman. has a substantial history of serious assaultive
criminal convictions.
In the lead case of Gregg v. Georgia, "5 the Court
(2) The offense of murder, rape, armed robbery, or
examined Georgia's new statutes and found by a 7-2
kidnapping was committed while the offender was
margin, 52 that the Georgia legislature had success- engaged in the commission of another capital
fully met the requirements of Furman. The Georgia felony, or aggravated battery, or the offense of mur-
sentencing statutes permit the death penalty for five der was committed while the offender was engaged
in the commission of burglary or arson in the first
crimes in addition to murder, s but the sentence
degree.
attacked by petitioner was for murder alone. "' The (3) The offender by his act of murder, armed rob-
statutes call for a bifurcated trial. The first stage is bery, or kidnapping knowingly created a great risk
devoted to making a determination of guilt. Theof death to more than one person in a public place
second stage is to determine the sentence if the by means of a weapon or devise which would nor-
mally be hazardous to the lives of more than one
defendant is found guilty. At the sentencing stage,
person.
considerable latitude is given both the prosecutor and (4) The offender committed the offense of murder
the defense in introducing evidence that might have a for himself or another, for the purpose of receiving
bearing on the sentencing authority's final judgment. money or any other thing of monetary value.
(5) The murder of a judicial official, former judicial
The death penalty may only be imposed at the
official, district attorney or solicitor or former dis-
sentencing stage if the jury (or judge, if a bench trial)
trict attorney or solicitor during or because of the
4996 S.Ct. at 2975 (Marshall, J., dissenting). exercise of his official duty.
50/1d. (6) The offender caused or directed another to com-
5196 S.Ct. 2909 (1976). mit murder or committed murder as an agent or
52Justices Stewart, Powell, Stevens, White, Rehnquist, employee of another person.
Blackmun, and the Chief Justice voted to uphold the statute. (7) The offense of murder, rape, armed robbery or
Justices Brennan and Marshall voted against the statute. kidnapping was outrageously or wantonly vile,
53The Georgia statutes, as amended after Furman, horrible or inhuman in that it involved torture, de-
retained capital punishment for murder, kidnapping for pravity of mind, or an aggravated battery to the
victim.
ransom or where the victim is harmed, armed robbery,
rape, treason, and aircraft hijacking. GA. CODE ANN. (8) The offense of murder was committed against
?? 26-1101, 26-1311, 26-1902, 26-2001, 26-2201, 26- any peace officer, corrections employee or fireman
3301(1972). while engaged in the performance of his official
54The petitioner was convicted of armed robbery and duties.

murder in the slaying of two men who had picked up (9) The offense of murder was committed by a per-
Gregg and a companion as they were hitchhiking. Gregg son in, or who has escaped from, the lawful cus-
was sentenced to death for both the murder conviction and tody of a peace officer or place of lawful confine-
the armed robbery conviction but the Georgia Supreme ment.
Court vacated the sentence for armed robbery as excessive (10) The murder was committed for the purpose of
after comparing the sentence to similar cases of armed avoiding, interfering with, or preventing a lawful
robbery. Just as the Court reserved judgement on the per arrest or custody in a place of lawful confinement,
se constitutionality of capital punishment for crimes other of himself or another.
(c) The statutory instructions as determined by the
than murder, here the Court reserved judgement on the
trial judge to be warranted by the evidence shall be
constitutionality of statutory death sentences for convictions
of crimes other than murder. given in charge and in writing to the jury for its de-

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 442 CAPITAL PUNISHMENT [Vol. 67

is found, mitigating circumstances

greed. It broug
pointed to the restricting interpretations
ing the sentencinggiven
stage
the statutesmay
by the Georgiainfluence
Supreme Court "0 t
ing authority not to impose
and expressed the
confidence that death
the Georgia Supreme pe
additional safeguard
Court wouldagainst
not adopt open-ended caprice,
construction of t
Supreme Court, under
the statutes in the an
future. "1automatic ap
dure built into the statute for
The third flaw the all
petitioner death
presented was that sen
required determine to whether
the statutes fell short the se
of the requirements of Furman
imposed under the because
influence
the juries could refuseof passion
to impose the death o
whether the evidence supports
penalty even if one or more of the aggravatingthe
factors fin
aggravating circumstance, and
were found. The Stewart whether
plurality declared that this t
is disproportionate
attackto sentences
misinterprets Furman: impose
cases.

Since theplan
Petitioner Gregg attacked this statutory proportionality
as requirement on review is
intended to prevent caprice in the decision to inflict the
violative of the Furman requirements. He first
penalty, the isolated decision of a jury to afford mercy
attacked the opportunities for discretionary action
does not render unconstitutional death sentences
under the statute, pointing in particular to the
imposed on defendants who were sentenced under a
unfettered authority of the prosecutor system
to determine
that does not create a substantial risk of
which defendants will be charged with a capital
arbitrariness or caprice. 62
crime and which will not; the discretion of the jury
to find the defendant guilty of a lesser included
Finally, the petitioner objected to the wide scope of
offense; and the discretion of the Governor
evidenceand
and the
argument that is allowed at the sentenc-
Board of Pardons and Paroles to commute a death ing state of the trial. The plurality quickly disposed
sentence. The Stewart plurality noted that theseof this argument by saying that the more argument
and evidence presented, the better the opportunity
charges were little more than "a veiled contention
for the jury to assess whether to impose the death
that Furman indirectly outlawed capital punishment
by placing totally unrealistic conditions on its use."penalty.
15 6"
According to the Stewart plurality, Furman heldIn conclusion, the Stewart plurality stated that the
only that in order to avert the capricious and basic concern of Furman "centered on those defend-
ants who were being condemned to death capricious-
arbitrary use of the death penalty the decision of
ly and arbitrarily." "' Under the present Georgia
when and how to use it had to be guided by standards
plan, the Stewart plurality concluded, a jury could
focusing attention on the particular offense and
no longer do what it was possible to do under the old
offender. 58 Thus the existence of the various discre-
Georgia plan; that is, it cannot impose the death
tionary stages inherent in the criminal justice system
penalty "wantonly and freakishly; it is always
was not a relevant factor concerning the issues raised
before the Court. circumscribed by the legislative guidelines." "5Juries
Petitioner next charged that the statutes were so are now directed to focus their attention on the
vague and broad that they left the juries "free to act nature and circumstances of the wrongdoer. This,
as arbitrarily and capriciously" as before in deter- along with the review function of the Georgia
mining a sentence. 5 The Stewart plurality disa- Supreme Court, assured the Stewart plurality that
the concerns that prompted the decision in Furman
would not be present under the new state plan.
liberation. The jury, if its verdict be a recommenda-
tion of death, shall designate in writing, signed byJustice White, joined by the Chief Justice and
Justice Rehnquist, wrote a concurrence 66 that dealt
the foreman of the jury, the aggravating circumstance
or circumstances which it found beyond a reasonable with the question of prosecutorial discretion. Justice
doubt. In non-jury cases the judge shall make such White refused to accept the proposition that prosecu-
designation. Except in cases of treason or aircraft hi-
tors would use their discretion capriciously or unfair-
jacking, unless at least one of the statutory aggravat-
ing circumstances enumerated in section 27-2534.1 60Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976);
(b) is so found, the death penalty shall not be im-Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975).
posed. 6196 S.Ct. at 2938-39.
56GA. CODE ANN. ? 27-2537(c) (Supp. 1975). 621d. at 2939.
5796 S.Ct. at 2937 n.50. 63Id.
581d. at 2937. 64Id. at 2940.
59Especially attacked were ?? 27-2534.1(b)(1), (3) 651d. at 2939.
and(7). 661d. at 2941.

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 1976] SUPREME COURT REVIEW 443

for
ly to prosecute some automatic on
defendants review
stiff
than other defendants. Prosecutors
supreme court, " are o
alth
vated by "the scribed
strength forcase
of the that review
and the
that the jury would impose
cally the death
enumerates pe
some
convicts," 7 according
the to Justice
jury White. 7'
to consider, Th
discretion may be "an indictment
those circumstancesof ano
system of justice.. eration. The
.. [But it] finding
cannot be a
a proposition of merely advisory
constitutional in
law." 68 Flo
Justice White's the final determination of opinion
concurring de the sentence. The samealso

7-2 majority upheld the Florida

the issue of jury discretion. He statute.
rejected7" t
tion that because theAfter rejecting the
jury waspetitioner's
the attack on the statute
sentenci
forjury
ity, and because the allowing inherent
is nqt discretion throughout the to
required
death penalty no system
matter what
for the same reasons circums
as it rejected that attack
found, the death in Gregg, the Stewart
penalty will plurality considered
still be theim
discretionary and argument that the statute was
standardless overbroad and vague
fashion. Ju
allowing
concluded that since "virtually
the any first degree murder
Georgia statutesconvict
the scope of murder
[to be]
for
a candidate
which
for the death the
sentence."death
"7Justice
be imposed by requiring a finding
Stewart's opinion considered of
the statute's provisions
aggravating circumstances,
as they have been construedjuries
by the Florida will
Supreme i
death sentence in a Court
substantial
78 and concluded that portion of t
the statute's provisions
defined. "In such circumstances it
were neither impermissibly vague could
nor of "inadequate no
argued that the penalty of death is bein
wantonly or freakishly. 70 kidnapping, or aircraft piracy
rape, arson, burglary,
The statute " under scrutiny
or the unlawful in of Proffitt
throwing, placing or discharging a
destructive device or bomb.
ida72 parallels the Georgia statutes in tha
ida statute provides (e)that
The capital felony was committed for the purpose
both aggravating
of avoiding or preventing a lawful arrest or effecting
gating circumstances must be taken int
an escape from custody.
Like Georgia's statutes,
(f) The capitalthe
felony wasFlorida statut
committed for pecuniary
ates the aggravatinggain.circumstances. 7 It als
(g) The capital felony was committed to disrupt or
671d. at 2949 (White, J., concurring). hinder the lawful exercise of any governmental func-
68Id. tion or the enforcement of laws.
691d. at 2948. (h) The capital felony was especially heinous, atro-
70Justice Blackmun also voted in favor of the Georgia cious, or cruel.
statutes. Id. at 2971 (Blackmun, J., concurring). He merely
74FLA. STAT. ANN. ? 921.141 (4).
concurred in the judgment, citing his dissenting opinion 75Mitigating
in circumstances are found in FLA. STAT.
Furman. Justice Blackmun followed the same procedure ANN.
in ? 921.141 (6):
(a) The defendant has no significant history of
concurring with the Stewart plurality in Proffitt v. Florida,
and Jurek v. Texas. His dissent in Woodson v. North prior criminal activity.
(b) The capital felony was committed while the
Carolina likewise just referred to his Furman opinion. His
primary view in Furman expressed apprehension that the defendant was under the influence of extreme mental
or emotional disturbance.
states would reenact regressive capital punishment statutes,
eliminating the element of mercy in the imposition of the(c) The victim was a participant in the defendant's
penalty. conduct or consented to the act.
71FLA. STAT. ANN. ? 921.141 (Supp. 1976-77). (d) The defendant was an accomplice in the capital
7296 S.Ct. 2960 (1976). felony committed by another person and his participa-
73Aggravating circumstances are found in FLA. STAT. tion was relatively minor.
ANN. ? 921.141 (5): (e) The defendant acted under extreme duress or
(a) The capital felony was committed by a person under the substantial domination of another person.
under sentence of imprisonment. (f) The capacity of the defendant to appreciate the
(b) The defendant was previously convicted of an- criminality of his conduct or to conform his conduct to
other capital felony or of a felony involving the use or the requirements of law was substantially impaired.
threat of violence to the person. (g) The age of the defendant at the time of the crime.
(c) The defendant knowingly created a great risk of 76See note 52 supra.
death to many persons. 7796 S.Ct. at 2968.
(d) The capital felony was committed while the 78Halliwell v. State, 323 So.2d 557 (Fla. 1975); Tedder
defendant was engaged, or was an accomplice, in the v. State, 322 So.2d 908 (Fla. 1975); Alford v. State, 307
commission of, or an attempt to commit, any robbery, So.2d 433 (Fla. 1975).

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 444 CAPITAL PUNISHMENT [Vol. 67

guidance to those statute 86 does not include statutory

charged with aggravating cir-
the dut
cumstances assentences."
mending or imposing do the Florida and Georgia statutes. 7"
However, the
The petitioner next Stewart plurality held thatthat
charged the care- the s
fullyjudge
no guidance to the limited scope of murder
or for which
jury capital pun-as to h
the various mitigating and
ishment can be imposed serves aggravati
the same purpose as
stances. Once again the
statutory plurality
aggravating circumstances, that is, to guide opinio
and channel argument,
Stewart rejected the the jury while eliminating arbitraryconten
discretion in the determination of the sentence. 87
The directions given
Thisto
alonejudge and jury
would not validate the Texas plan are su
clear and precise to enable the various ag
because Furman mandates that mitigating circum-
circumstances to be weighed against the m
stances must also be taken into account. 88 Since the
ones. 80
statute does not specifically deal with mitigating
The Stewart plurality found that while the decision circumstances, the Stewart plurality carefully exam-
of whether to impose the death penalty may be hard, ined the three post-conviction questions 89 which
it is basically the same type of decision that fact under the statute the jury must answer affirmatively
finders are routinely required to make. Furman's
requirements are satisfied when the judge or jury 86TEX. PENAL CODE ANN. ? 19.03 (Vernon 1974).
8796 S.Ct. at 2955. Murder is now defined in Texas
responsibile for sentencing is guided and channeled
by TEX. PENAL CODE ANN. ? 19.02 (a) (Vernon 1974):
by special factors that argue for or against the death
A person commits an offense if he:
penalty, thus "eliminating total arbitrariness and (1) intentionally or knowingly causes the death of an
discretion in its imposition." 81 individual;
The Florida statute does not provide a structured (2) intends to cause serious body injury and commits
form of review by the state supreme court, thus an act clearly dangerous to human life that causes the
death of an individual; or
opening up the process to the petitioner's charge that
(3) commits or attempts to commit a felony, other
it is necessarily subjective and unpredictable. than voluntary or involuntary manslaughter, and in
However, the Stewart plurality refused to find that the course of and in furtherance of the commission or
the process was necessarily ineffective or arbitrary. attempt, he commits or attempts to cimmit an act
On the contrary, they noted that the Florida clearly dangerous to human life that causes the death
of an individual
Supreme Court had undertaken its functions responsi-
Texas law defines as a capital offense the commission
bly. 82 of murder as defined in ? 19.02 (a) (1) if:
The brief concurring opinion written by Justice (1) the person murders a peace officer or fireman who
White and joined by the Chief Justice and Justice is acting in the lawful discharge of an official duty
and who the person knows was a peace officer or fire-
Rehnquist pointed out that as to the categories of
man;
murder where the death penalty could be imposed, (2) the person intentionally commits the murder in
there was every reason to believe that the penalty will the course of committing or attempting to commit kid-
be imposed with regularity. A potential killer, aware napping, burglary, robbery, aggravated rape or ar-
son;
that the penalty would likely be carried out, would be
(3) the person commits the murder for remuneration
thus deterred. Therefore, it could no longer be said
or the promise of remuneration or employs another to
that the death penalty: commit the murder for remuneration or the promise of
remuneration;

has ceased to be a credible deterrent or measurably to (4) the person commits the murder while escaping or
contribute to any other end of punishment in the attempting to escape from a penal institution;
criminal justce system. 83 (5) the person, while incarcerated in a penal institu-
tion, murders another who is employed in the opera-
tion of the penal institution.
The Court upheld a third state statute by the same
TEX. PENAL CODE ANN., tit. 5, ? 19.03 (a) (Vernon 1974).
7-2 margin 8 in Jurek v. Texas.85 The Texas 8896 S.Ct. at 2956.
89The questions the jury must answer are these:
7996 S.Ct. at 2968. (1) whether the conduct of the defendant that caused
80d. at 2969. the death of the deceased was committed deliberately
8lid. and with the reasonable expectation that the death of
82Id. the deceased or another would result;
831d. at 2970. (2) whether there is a probability that the defendant
s"See note 52 supra. would commit criminal acts of violence that would
8596 S.Ct. 2950 (1976). constitute a continuing threat to society; and

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 1976] SUPREME COURT REVIEW 445

before the death behavior

sentence of imposed.
can be juries confro
The Stewart ties.
plurality Many
found thatjuries, findi
the Texas Cr
nal Court of Appeals severe in a significant
had indicated n
in its deci
the return
petitioner's
case that it guilty
wouldverdicts,
interpre
second automatically
as toquestion haveto
allow a defendant sent
sobr
the jury's attention death.
whatever mitigating
In response ci
to this
verdicts,
stances he may be able to show.legislatures
90 Thus, acc b
the Texas court's would allow of
interpretation juries
the to dist
second
to exercise
tion, the Stewart plurality discretion,
concluded a
that the
statute is consistent cumstances into accoun
with the requirements o
man. It provides for cases. By even,
rational, the time
and the
cons
imposition of the death
1972,penalty and senten
mandatory is the
constitutional. 91 by both legislatures and
concluded
Justice White, joined by the wasevidence
Chief Justic t
Justice Rehnquist, decency
filed had come
a concurring to rejec
opinion 9
more making the societal
point thatstandards.the
98 discretion inhere
the criminal justice In light of thisduring
system widespread rejection
the of mandatory
course o
prosecution does not death
mean sentences, the Stewart
that theplurality reasoned that
penalty of
would be "arbitrarily the states
and enacting mandatory penalties after Furman
freakishly" impose
In Woodson v. North must have done so in an attempt
Carolina, 94 a to respond
5-4 tomajori
the
confusion
held that the state plan generated by the
"failed toFurman opinion, and nota con
provide
because of any renewed
tionally tolerable response tosocial acceptance of manda-
Furman. The
Carolina tory death
for plan sentences."9 The severity
mandatory called deathof the only
if con
of first penalty available
murder degreeas that upon a finding
was of guilty will
defined i
encourage juries
statute. With the Stewart to violate their oaths
plurality to return writi
again a
main verdict supported
opinion, the history ofby mandatory
the evidence. Mandatory death
death
ties was examined. It penalties
was continue
the to be inconsistent
plurality's with contempo-impr
that such penalties rary
havestandards been
respecting therejected
imposition of death and
as "u
harsh and unworkablytherefore, according to 57
rigid." the Stewart
One plurality,
factorthe w
eighth amendment prohibits their use. 1oo
Finally, the Stewart plurality held the North
Carolina plan invalid for failing to allow mitigating
(3) if raised by the evidence, whether the conduct of circumstances to be considered before the sentence of
the defendant in killing the deceased was unreasona-
death is imposed. Because of the qualitative differ-
ble in response to the provocation, if any, by the
deceased. ence between the death penalty and prison sentences,
the Stewart plurality concluded that the fundamental
TEXAS CODE CRIM. PROC. ANN., Art. 37.01 (b) (Vernon
Supp. 1975-76). respect for human dignity underlying the eighth
90State v. Jurek, 522 S.W.2d 934, 939-40 (1975). amendment requires factors relating to the defendant
9196 S.Ct. at 2958.
to be taken into account during sentencing. "' With-
92id. at 2959 (White, J., concurring). The Chief Justice
concurred separately in the judgment without opinion.out the opportunity to present relevant facts to the
93Id. at 2959-60. sentencing authority, the sentencing procedure:
9496 S.Ct. 2978 (1976).
95Concurring in the opinion were: Stewart, Powell,treats all persons convicted of a designated offense not
Stevens, JJ., id. at 2981; Brennan, J., id. at 2992; Mar-as uniquely individual human beings, but as members
shall, J., id. Dissenting were: Burger, C.J., White,of a faceless, undifferentiated mass to be subjected to
Rehnquist, JJ., id. Blackmun, J., id. at 2993. the blind infliction of the penalty of death. 102
A murder which shall be perpetrated by means of
poison, lying in wait, imprisonment, starving, torture,
Therefore, concluded the Stewart plurality, the
or by any other kind of willful, deliberate and pre-
meditated killing, or which shall be committed in the
perpetration or attempt to perpetrate any arson, rape, 981d. at 2988.
robbery, kidnapping, burglary or other felony shall be 99Id. at 2988-89.
deemed to be murder in the first degree and shall be o1old. at 2990.
punished with death. 10'Id. at 2991-92.
9796 S.Ct. at 2986 (Stewart, J., plurality). 1021d. at 2991.

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 446 CAPITAL PUNISHMENT [Vol. 67

North Carolina statutory plan

Louisiana. failed
o" Although totally
the Louisiana statute 110to m
the requirements set out incases
limits those Furman.
where capital punishment is pos-
Justices Brennan and sibleMarshall found
and employed a responsive verdictthe statu
system,
invalid, but did so on the
those basis
limitations of
were held their
insufficient belief
to overcome
capital punishment is the
per se unconstitutional.
constitutional infirmities of mandatory death "10
Four Justices dissented, but the major dissent
sentences.1"' The problem with the mandatory
opinion was filed by Justice
approach is that Rehnquist. 1o' that
society has rejected the belief In a l
opinion, Justice Rehnquist,
"every offense inadhering to
a like legal category calls forhis
identi- opi
in Furman, rejected every argument
cal punishment of
without regard to the past the
life and Ste
plurality. o05 habits of a particular offender." 112
He first questioned The
whether these
plan was also found cases
insufficient by the rais
an eighth amendment issue
Stewart plurality inat all.
failing In
to provide his for
standards view
prohibition against cruel
the jury toand unusual
follow in sentencing. The punishm
responsive
was limited to those punishments deemed
verdict system employed in the statute cruel
allows the jury
unusual at the time of the adoption of the
to pick from a number of alternative verdicts given to am
ment. 10
it ranging from not guilty, to manslaughter, to
Justice Rehnquist took issue with the assertion of murder, to first degree murder. The
second degree
the Stewart plurality that the history of Stewart
mandatory
plurality concluded that there were no
death penalties revealed that those penalties had been
guidelines for the jury to follow and that the plan
rejected as "unduly harsh and unworkablyinvited
rigid."
theo07
jurors to disregard their oaths and choose
In essence he argued that the legislative decisions to a lesser offense whenever they felt the
a verdict for
move away from mandatory death penalties in no
penalty of death was inappropriate. 11"
way reflected a rejection of that form of punishment.
Justice White's dissent, "' joined by the Chief
Rather, the legislatures reasoned that if aJustice,
jury could
Justice Blackmun and Justice Rehnquist,
return a sentence other than death upon acharged
conviction
that the mere possibility that the jury might
for murder, fewer guilty criminals would go its
violate com-
oath and iefuse to convict for first degree
pletely free. Justice Rehnquist attributed the problem
murder is not sufficient to equate the Louisiana plan
of juries acquitting obviously guilty defendants
with theto a
unlimited discretion found unconstitutional
small minority of jurors who could defeat the
in Furman. Juries should be trusted to do what they
majority by casting a single vote to acquit.
areThus, the
supposed to do, otherwise no jury system could be
problem was due to the requirement of unanimity of
found constitutional. The same is true regarding the
verdicts and not to societal rejection of discretion
mandatory exercised by prosecutors in performing
death penalties. 10. Justice Rehnquist could
their see
widenoranging duties, Justice White asserted.
constitutional difference between the type of exercise
The discre- of discretion by the jury and the
tion approved in the Georgia, Florida prosecutor
and Texas in the course of their duties is nothing
statutes and the type of discretion disapproved in the
more than the "rational enforcement of the State's
North Carolina statute. He stated that criminal
the properlaw . . . system." 115
inquiry of the Court, once the determination was
The dissenters also disagreed with the Stewart
made that capital punishment was not perplurality's
se uncon- holding that a separate proceeding must
stitutional, should be limited to whether the defend-
be held at which the sentencing authority must take
ant received a fair trial. into consideration the character and record of the
The same 5-4 majority that struck down the
defendant. Justice White could find no reason why a
North Carolina plan also struck down the Louisiana
state could not decide that the commission of certain
plan for mandatory death sentences in Roberts v.crimes conclusively established the character of the
defendant. In addition, he felt that a state should be
1031d. (Brennan, J., concurring), 2992 (Marshall, J.,
concurring). 10996 S.Ct. 3001 (1976).
104Id. at 2993 (Rehnquist, J., dissenting). Justices 11"LA. REV. STAT. ANN. ? 14:30 (West 1974).
White, Blackmun, and the Chief Justice were the other "'96 S.Ct. at 3006.
dissenters. Id. at 2978, 2992. 1121d., quoting Williams v. New York, 337 U.S.
105408 U.S. 238, 465 (Rehnquist, J., dissenting). 241, 247 (1949).
10696 S.Ct. at 2993.
1131d. at 3007.
'I71d. at 2994.
11"Id. at 3008 (1976) (White, J., dissenting).
o081d. at 2996.
"11d. at 3013.

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 1976] SUPREME COURT REVIEW 447

able to conclude that the need to deter certain crimes requirement of consideration of mitigating circum-
and the likelihood that the death penalty will succeed stances by the sentencing authority will focus the
in deterring them is such that the penalty should be attention of the judge or jury on the individual
mandatory for all who commit those crimes. " offense and on the offender, who will be given an
Justice White was concerned that the Stewart opportunity to persuade the sentencing authority
plurality was taking a position in Roberts and that death is not an appropriate penalty. While this
Woodson which disregarded past Court decisions. does leave some discretion with the sentencing
He pointed in particular to the case of McGautha v. authority, it is at least guided and channeled so that
California, "7in which the Court held that permitting an evenhanded administration of capital punishment
a jury to impose the death sentence without govern- is clearly more possible than under a system which
ing standards was constitutionally permissible. Jus- provides no such guidance. Given the fundamental
tice White, finding no reason to reconsider the proposition that capital punishment is not per se
holding of McGautha, stated that he "would not cruel and unusual, the safeguards set forth in these
invalidate the Louisiana statute for its failure to cases may provide as much protection against arbi-
provide what McGautha held it need not pro-
trariness and capriciousness as is possible.
vide." 118 Finally, the dissenters took issue with theBecause of the multi-opinioned Furman decision,
it is difficult to state categorically that Gregg and its
plurality's conclusion that the history of mandatory
companion cases represent a total departure from
death penalties revealed society's rejection of them.
that case, but the tone of these cases is significantly
While state legislatures may have preferred discre-
tionary sentencing to mandatory penalties, thisdifferent
did from Furman. Undertones in Furman sug-
not suggest to Justice White the total rejection gested
of that factors of racial and economic prejudices
mandatory plans. It simply meant that the state permeated the state capital punishment plans. 120
legislatures had indicated a preference from Theretwo was also a definite moral tone to the opinions,
ranging from Justice Brennan's and Justice Mar-
alternatives, neither type of sentencing being wholly
shall's conclusion that capital punishment is immo-
rejected in the sense that the Stewart plurality
implied. ral 121 to Justice White's more cautious assertion that
if the death penalty could not be shown to be a
CONCLUSION
deterrent force, it should be held unconstiutional as
the "needless extinction of life." 122 Gregg and its
As the numerous opinions filed in these cases
companion cases are concerned more with the proce-
indicate, the Court still does not speak with one voice
dures set forth in the statutes than with the racial or
on the issues raised by capital punishment. However,
in contrast to Furman, in which the Court was so class characteristics of those against whom they are
badly fragmented that no one could be quite sure of being applied.
what decision was actually handed down, the Court The use of community standards was one of the
in these cases not only answers the basic question of strengths of the Stewart plurality's opinions. In
the constitutionality of the death penalty, but alsolooking to the legislative response to Furman, the
gives considerable guidance to states which wish to Stewart plurality made a reasonable assumption that
employ capital punishment as part of their criminal the response would be a fair barometer of current
justice system. Since the Stewart plurality is thesocial standards. Furthermore, the fact that a rela-
narrowest position a majority of the Court adherestively large number of people have been sentenced to
to, if a state legislature follows their guidelines it willdeath under post-Furman statutes in a relatively
in all probability have achieved a constitutional short time added to the permissible conclusion that
capital punishment statute. 119By including statutorysociety has not rejected capital punishment.
aggravating circumstances, it will ensure that the The strength of the Stewart plurality was the
sentencing authority articulate exactly why a givenweakness of Justice Marshall's opinion. He at-
defendant is to be put to death for his crime. Thetempted to base part of his decision against capital
punishment in Furman on the theory that contempo-
116Id. at 3018.
117402 U.S. 183 (1971).
"1Roberts v. Louisiana, 96 S.Ct. at 3008 (White, J., 120408 U.S. at 249-51 (Douglas, J., concurring), 366
dissenting). n.155 (Marshall, J., concurring).
119Enactment of a statute like the Texas statute would 1211d. at 296 (Brennan, J., concurring), 369 (Marshall,
require state courts to interpret the statute in a similarJ., concurring).
fashion as the Texas courts did. 1221d. at 312 (White, J., concurring).

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 448 CAPITAL PUNISHMENT [Vol. 67

rary values had rejected it will have death

no basis for determining
penalties. whether theTha
ment has apparently been
penalty emasculated in th
is excessive.
following Furman by This the refusallegislative
to go behind the legislative justifica-
response
man and the number of defendants sentenced to tions will create problems for the Court in deciding
whether capital punishment is excessive for crimes
death under new statutes. Justice Marshall acknowl-
other
edged these developments, yet explained that he in- than murder, such as armed robbery, rape, or
kidnapping. If the Court follows the analysis set
tended only to consider the opinion of an informed
citizenry. Such a citizenry would exist when all theby the Stewart and White pluralities, the fact
forth
information which was relevant to the issue was
that the states have enacted such penalties will be
disseminated and understood by the public. It given
is un-great weight in determination of whether the
likely that any such state of affairs will come penalty
to pass is excessive. However, the focus of the second
soon, if for no other reason than the tremendous
prong of the eighth amendment test should not be
amount and complexity of the relevant data.concerned
Given with popular acceptance as much as with
the general acceptance of capital punishment re-
other values, such as whether the penalty does in fact
fitthe
flected in the legislative response to Furman, the crime and whether it is an unnecessary
number of defendants sentenced to death under these infliction of pain and suffering.
statutes, and the various referendums cited by the Although the Stewart plurality purports to build
on prior case history, it had to selectively ignore
Stewart plurality 123 one would have to agree with
the majority that society has not yet rejected the
significant holdings of cases recently decided in order
ultimate penalty of death. to arrive at some of its conclusions. One prominent
More must be found in order to uphold capital example is the case of McGautha v. California. 126
punishment against an eighth amendment challenge Even though the McGautha case is liberally cited
however, according to the Stewart plurality. The throughout the Stewart plurality's opinions, its
second prong of the test is that the penalty must not
holding is clearly in conflict with the approach taken
be excessive.124 Both the Stewart and White plurali-by the plurality, since in McGautha the Court held
ties' opinions continue to rely on public opinion as an
that it is constitutionally permissible to impose death
indicator of what constitutes excessive punishment.without governing standards. 12 The Stewart plural-
But simply because a community demands the life of ity attempted to explain away the problem in a
an individual for breaking the community's law does footnote, stating that McGautha was not an eighth
amendment but a fourteenth amendment case and
not necessarily mean that the penalty is not excessive
that while Furman did not overrule McGautha
or that life should be sacrificed. As Justice Marshall
points out, it is difficult to believe that without
it is clearly in substantial tension with a broad reading
capital punishment, the nation would turn to "self-of McGautha's holding. In view of Furman, McGau-
help, vigilante justice, and lynch law" as feared by tha can be rationally viewed as a precedent only for the
the plurality. 125 proposition that standardless jury sentencing proce-
The White plurality acknowledges that no specific dures were not employed in the cases before the Court
deterrent factor can be identified involving capital so as to violate the Due Process Clause. 128
punishment, yet prefers to accept the legislative
Another example of this same problem is the
judgment that there is some deterrent effect in the
treatment of Spencer v. Texas. 129 Spencer held that a
penalty of death. But while there is much to be said
bifurcated trial is not constitutionally mandated, yet
for not allowing the judiciary to act legislatively, it is
the Stewart plurality held that the state must provide
the Court that has the responsibility for determining
a separate procedure under which the sentencing
in the final analysis whether the penalty is excessive.
authority must consider any mitigating circum-
The legislatures have already made at least the
stances along with the character and record of the
implicit determination that the death penalty is not
defendant. 10 While this does not have to be done in
excessive by their enactment of capital punishment
statutes. If the Court is unwilling to examine those 126402 U.S. 183 (1971). See the discussion of McGautha
by Justice White in his dissent in Roberts, 96 S.Ct. at
legislative justifications for capital punishment, then
3013.
127Id. at 183.
123Gregg v. Georgia, 96 S.Ct. 2909, 2929 (1976)
128Gregg v. Georgia, 96 S.Ct. at 2929 (Stewart, J.,
(Stewart, J., plurality). plurality).
124Id. at 2925. 129385 U.S. 554 (1967).
1251d. at 2976 (Marshall, J., dissenting). 130old. at 568-69.

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1976] SUPREME COURT REVIEW 449

a formalized bifurcated
clude trial,
that athe intent
statute im
rality is thatthere be
be upheld
a two stage process:
if (1) there
ing and sentencing. One can speculate
expressed in terms oftha a
reasoning applied aid
to distinguish McGau
the sentencing auth
also be used to distinguish
whether Spencer from
to impose the
its companion cases.is a separate procedure
SUMMARY an opportunity to bring
In summary,majority of the Court
to the attention a
of the
of the relative
upheld the constitutionality clarity
of capital pu
There was no majority opinion,
between but with
the pluralities
companion
the constitutionality cases
of particular shou
statut
look to the Stewart plurality
fundamental as the n
questions
position upholdingofdeath penalty
capital statute
punishment f

The preceding notes were prepared by members

issue are Bradley Falkof, Paul Thaddeus Fox,
Steven B. Weinstein, James R. Troupis and Stewar

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